Robert qualified as Solicitor in 2008 and joined Bermans in July 2019, becoming a Partner in the Employment team in 2022.
He is known for delivering strategic and commercial advice to clients in different sectors. He has contributed to industry journals and national press with articles on employment law issues. He acts for a wide range of clients ranging from OMB’s to large national and international companies, however he has a particular focus on owner managed SME’s.
Robert regularly advises on complex internal HR and employment law issues as well as business re-organisations, restructures and TUPE transactions. He is particularly experienced at representing clients in the Employment Tribunal and regularly appears as an advocate.
During a redundancy process, an employer selects employees for redundancy based on selection criteria. However, employers need to avoid any criteria which are discriminatory.
We will consider below some criteria that are frequently used by employers during redundancy processes and how to apply them in a manner that avoids inadvertently discriminating against employees who are pregnant or on maternity leave.
Attendance records
Any absences related to pregnancy-related illness or maternity leave should be discounted when scoring employees.
If these absences are included, the application of this criterion will be discriminatory.
Performance and ability
If a pregnant employee’s performance has declined due to pregnancy-related illness, any appraisals that document her performance during this time, or performance issues that arise or can be attributed to the pregnancy, should be discounted.
This is particularly relevant if her performance before her pregnancy was otherwise of a satisfactory standard.
Suitable alternative vacancies
As part of the redundancy process, an employer must consider suitable alternative vacancies before dismissing an employee.
When making an employee on maternity leave redundant, and where an alternative role is available, employers should offer suitable alternative employment to that employee over any other employee who may have been selected for redundancy. This means that employees on maternity leave have priority over other employees who are also at risk of redundancy, which is a rare example of lawful positive discrimination in practice.
Under a proposed Bill, the government is looking to extend this protection (although we don’t know when yet) to cover employees as soon as they notify employers of their pregnancy until six months after the end of maternity leave.
This area of law may change during the year, and we await to see if the proposals are enacted.
Connect with Robert here.
